Terms of Use – ResMed Mask Sizing Tool

Effective Date: 19th April 2018

Terms of Use

Welcome to a new ResMed service dedicated to supporting new and existing patients using ResMed masks (“Service”). Please read these terms of use (“Terms”) along with a copy of our Privacy Policy, which you have received a link to, before using the Service because they set out the important terms you will need to know about this Service. In the Terms the terms 'you' and 'yours' refer to the person using the Service.

The terms 'we', 'our', 'us' and 'ResMed' collectively refer to ResMed Ltd. and ResMed Ltd.’s affiliates, organized under the laws of various states and countries and operating in Australia, Singapore, the United States or in other jurisdictions.

Use of this Service is governed by the Terms. By using this Service you agree to abide by these Terms and Privacy Policy. If you do not agree with any of these Terms, do not participate in using the Services.

The servers that will store your information and that are used to communicate with you electronically via text, voice, or email (“Communications”) are located in Australia, New Zealand and Malaysia, and any personal details you provide will be processed by ResMed in Australia, New Zealand and Malaysia. We may share your personal data in limited circumstances and in a controlled and secured manner, with third party data processors we engage to provide certain aspects of the Service on our behalf. These data processors are contractually under an obligation of confidentiality and are bound to use your personal data for the sole purpose of performing the services we have engaged them to provide. They may not use your personal data for any other purpose. For information about the way in which we use, process and share personal information that we may obtain about you, please refer to our Privacy Policy, attached to these Terms and available here (the ‘Privacy Policy’).

ResMed expressly excludes any representation or warranty, express or implied, with respect to the information available using this Service. ResMed makes no representation about any third-party websites that may be accessed via links to or from this Service. By using this Service, you agree that the law of the New South Wales, Australia, without regard to its conflict of laws principles, will govern all matters between you and ResMed with respect to your use of this Service.

Disclaimer on emergency medical conditions

DO NOT USE THIS Service FOR MEDICAL EMERGENCY SERVICES. IN AN EMERGENCY, CALL YOUR LOCAL EMERGENCY ASSISTANCE NUMBER.

Medical disclaimers

THE CONTENT (AS DEFINED BELOW) AVAILABLE THROUGH THIS SERVICE, OR COMMUNICATED TO YOU DIRECTLY OR THROUGH AN APPLICATION, TOOL, OR VIA COMMUNICATIONS, IS FOR INFORMATIONAL, EDUCATIONAL AND RESUPPLY PURPOSES ONLY AND IS NOT A SUBSTITUTE FOR THE PROFESSIONAL JUDGMENT OF A HEALTH CARE PROFESSIONAL IN DIAGNOSING AND TREATING OR FITTING PATIENTS. RESMED DOES NOT, THROUGH THIS SERVICE OR ITS FUNCTIONS, PROVIDE MEDICAL ADVICE, NOR DOES IT PROVIDE MEDICAL PRESCRIPTIONS, TREATMENTS, OR DIAGNOSTIC SERVICES. ADDITIONALLY, THE USE OF THE CONTENT OBTAINED THROUGH THIS SERVICE, AND COMMUNICATIONS FROM RESMED IN CONNECTION WITH YOUR USE OF THE SERVICE OR RESMED PRODUCTS, DOES NOT ESTABLISH A PHYSICIAN-PATIENT RELATIONSHIP.

Your reliance upon information and content obtained by you from ResMed Communications, including this Service is solely at your own risk. We do not assume any liability or responsibility for damage or injury (including death) to you, other persons or property arising from any use of any product, information, idea or instruction contained in the content.

We do not provide advice to you on any issues relating to medical treatment or diagnosis and the Content is intended solely as a resource and informational tool. Always seek the advice of a physician or other qualified health provider with any questions you may have regarding a medical condition. Never disregard professional medical advice or delay in seeking it because of something you have seen or read on this Website or through any Communications. We are not medical professionals and will not discuss or advise you on any issues relating to medical treatment or diagnosis.

Intellectual property rights Ownership

All content, text, images, data, information and other material displayed, available or present as part of this Service or made available to you through Communications (“Content”), including any accompanying intellectual property rights in the Content (including without limitation trademarks and copyrights) are the property of ResMed, its affiliates, its licensors or the designated owners, and are protected by applicable intellectual property laws. You should assume that Content you see or read in connection with this Service is copyrighted unless otherwise noted and may not be used without our written permission, except as otherwise provided in these Terms of Use.

Authorized and prohibited uses

You may download and print copies of the Content only for non-commercial, informational, personal use, without modification or alteration in any way, and only so long as you comply with these Terms and applicable laws. Except as may otherwise be expressly authorized by these Terms, you may not otherwise reproduce, sell, publish, distribute, modify, display, or use any of this Service or the Content without our prior written permission. If this Service permits the email or other means of forwarding certain Content, you may send that particular Content or link to others by email or SMS. You agree not to infringe upon ResMed’s intellectual property rights or remove or modify related proprietary notices contained in these Terms or the Content.

User content

Except as provided in our website Privacy Policy, any content that you submit to this Service or to ResMed, whether directly or through a third-party website ('User Content') will be deemed to be non-confidential and may be disclosed through this Service to unknown persons on a worldwide basis without control by ResMed, including for browsing, downloading, printing and other uses by such other persons or entities. You agree not to submit User Content through this Service or ResMed except for User Content that is fully authorized for purposes of this Service and these Terms, and by posting User Content in connection with this Service, you warrant and represent that you own the rights to the User Content or are otherwise authorized to post, distribute, display, perform, transmit or otherwise distribute User Content. It is your obligation to determine the extent to which User Content you submit is protected by applicable intellectual property laws. You agree that ResMed shall have, and hereby grant to ResMed, a worldwide, royalty-free, perpetual, irrevocable, sublicenseable, non-exclusive right and license to translate, reproduce, sell, publish, distribute, modify, adapt, display, perform, promote, link to or use, in any form or media, any User Content that you submit to ResMed. ResMed does not endorse any User Content, or third-party product or service that may appear in connection with use of this Service. Nothing in these Terms shall obligate ResMed to use any User Content you submit or permit the posting of such User Content on any website or platform.

Registration and passwords

At times, we may or may not require you to have a password and provide registration details to access our Service or portions of our Service, or other services offered by ResMed. To the extent that we do require a password and registration details, the details you provide must be correct, current and complete. If ResMed believes that the details are not correct, current and complete, we have the right to refuse you access to the Service, or any of its resources, and to terminate or suspend your account, if any. We may also terminate or suspend your account if you fail to use it for 90 days or more. You are responsible for maintaining the confidentiality of any password(s) you are given to access our Services, and you are fully responsible for all activities that occur under your password(s). ResMed shall not be liable for any loss that you incur as a result of someone else using your password, either with or without your knowledge. You may be held liable for any losses incurred by ResMed, its affiliates, officers, directors, employees, consultants, agents and representatives due to someone else's use of your account or password. You agree to notify us immediately of any unauthorized use of your password(s). We reserve the absolute right not to issue a password to any person or entity.

Software downloads

Any ResMed software that is made available to download in connection with this Service ('Software') is the copyrighted work of ResMed and/or its affiliates or suppliers. The Software is made available for downloading solely for your use pursuant to the end user license agreement ('EULA') applicable to the Software, and any reproduction or redistribution of the Software other than as permitted in the EULA is expressly prohibited by law, and may result in severe civil and criminal penalties. Violators will be prosecuted to the maximum extent possible. In addition, downloading Software is prohibited if you are visiting this Website from any of the countries to which the export of software is prohibited by the U.S. Department of Commerce. Without limiting the foregoing, copying or reproduction of the software to any other server or location for further reproduction or redistribution is expressly prohibited.

Compliance with Copyright laws

ResMed respects the rights of all copyright holders and in this regard, we have adopted and implemented a policy that provides for termination of users of this Service who infringe the rights of copyright holders. If you believe that your work has been copied in a way that constitutes copyright infringement, please provide us with:

  1. A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
  2. Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works;
  3. Identification of the Content that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and the information reasonably sufficient to permit ResMed to locate the Content;
  4. Information reasonably sufficient to permit ResMed to contact the complaining party;
  5. A statement that the complaining party has a good faith belief that the use of the Content in the manner complained of is not authorized by the copyright owner, its agent or the law;
  6. A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

For copyright inquiries, please contact ResMed's Copyright Agent at:

Vice President, General Counsel-Americas

ResMed Corp. Legal Department

Copyright Agent

ResMed Corp.

9001 Spectrum Center Blvd.

San Diego, CA 92123

Phone: (877) 389-8868

Website administration Access arrangements and fees

Your use of this Service must be in accordance with any and all procedures, forms, formats, displays and operating times, which may be determined, specified or modified by ResMed in its discretion. You are responsible for all software, hardware, interconnections, fees, expenses, costs and taxes for you to access or use this Service, or to receive any Communications from ResMed.

At this time, we do not charge a fee to use this Service (but not including any data costs incurred by you or your carrier in using the Service), but we reserve the right to impose or modify fees in connection with use of this Service (or portions of this Service) at any time without liability. ResMed shall endeavor to issue a general notice with regard to any imposition of fees or modifications to this Service.

Linking

Unless otherwise agreed upon between you and ResMed, no link shall be made to any page of any ResMed or third party website (“Website”) except a direct link to the top page without framing. In addition, any link to a Website must be immediately followed by notice to ResMed via email at privacy@resmed.com. Moreover, in the event ResMed deems your linking practices in relation to a Website to be inappropriate, ResMed may choose to delete the link or to provide you with notice concerning removal or modification of the inappropriate link, and you agree to comply with any and all requirements of ResMed relating to that.

Access to Service

While it is ResMed's objective to make the Service accessible 24 hours per day, seven days per week, the Service may be unavailable from time to time for any reason including, without limitation, routine maintenance. You understand and acknowledge that due to circumstances both within and outside of the control of ResMed, access to the Website may be interrupted, suspended or terminated from time to time. ResMed shall have the right at any time to change or discontinue any aspect or feature of the Website, including, but not limited to, Content, hours of availability and equipment needed for access or use.

Import/export control

You agree not to submit any User Content to a Website or commit any act involving the transfer of information relating to any Content in violation of applicable import/export control, espionage or national security laws.

Your obligations:

Compliance

You agree to comply with all applicable laws in connection with your use of this Service and a Website.

Unsuitable content and conduct

User shall not engage in, conduct or submit to a Website or as part of any Service any User Content or other material that is illegal, inaccurate, misleading, misappropriated, infringing, dilutive, defamatory, obscene, offensive or otherwise objectionable. User shall not cause damage, embarrassment or adverse publicity to ResMed.

Functional compatibility and system abuse

You will submit only User Content that is functionally and technically compatible with this Service or a Website. You will not attempt to and will not damage, corrupt, tamper with or infect a Website or this Service, the Content or any information or telecommunication system of ResMed with a virus or other malicious computer program. You will only use this Service for the permitted purposes stated in these Terms, and will not engage in abusive activity with respect to this Service, or undertake any other activity which may adversely affect the use or enjoyment of this Service by any person. You are prohibited from using any services or facilities provided in connection with this Service to compromise security or tamper with system resources and/or accounts. The use or distribution of tools designed for compromising security (e.g., password guessing programs, cracking tools or network probing tools) is strictly prohibited. If you become involved in any violation of system security, ResMed reserves the right to release your details to system administrators at other sites and law enforcement authorities in order to assist them in resolving security incidents.

Your cooperation and notification

You agree to cooperate with all reasonable requests of ResMed and will notify ResMed promptly upon learning of any actual or suspected breach of these Terms by you or unauthorized use or abuse of this Service.

Warranty disclaimers

THIS SERVICE, ITS CONTENT AND ITS LINKS AND COMMUNICATIONS ARE PROVIDED ON AN 'AS IS' BASIS AND ARE USED ONLY AT YOUR SOLE RISK, TO THE FULLEST EXTENT PERMISSIBLE BY LAW. RESMED DISCLAIMS ALL WARRANTIES, REPRESENTATIONS AND CONDITIONS, EXPRESS OR IMPLIED, OF ANY KIND, REGARDING THIS WEBSITE (INCLUDING ITS CONTENT, HARDWARE, SOFTWARE AND LINKS), INCLUDING ANY IMPLIED WARRANTIES AS TO FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, TITLE, NONINFRINGEMENT, RESULTS, ACCURACY, COMPLETENESS, ACCESSIBILITY, COMPATIBILITY, SECURITY AND FREEDOM FROM COMPUTER VIRUS. IF APPLICABLE LAW DOES NOT ALLOW THE EXCLUSION OF SOME OR ALL OF THE ABOVE IMPLIED WARRANTIES TO APPLY TO YOU, THE ABOVE EXCLUSIONS WILL APPLY TO YOU TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.

Limitations on Liability and Remedies

RESMED'S ENTIRE LIABILITY AND YOUR EXCLUSIVE REMEDY WITH RESPECT TO ANY DISPUTE WITH RESMED (INCLUDING WITHOUT LIMITATION YOUR USE OF THE SERVICE OR RECEIPT OF ANY COMMUNICATIONS) IS TO DISCONTINUE YOUR USE OF THE SERVICE OR WEBSITE. RESMED AND ITS VENDORS SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGE ARISING FROM YOUR USE OF THIS WEBSITE RECEIPT OF ANY COMMUNICATIONS OR FOR ANY OTHER CLAIM RELATED IN ANY WAY TO YOUR USE OR REGISTRATION WITH RESMED. THESE EXCLUSIONS FOR DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES INCLUDE, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOST DATA, LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, EVEN IF RESMED HAD BEEN ADVISED OF THE POSSIBILITY THEREOF AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY UPON WHICH THE CLAIM IS BASED. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS, RESMED AND ITS VENDORS' LIABILITY IN SUCH STATE OR JURISDICTION SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW. RESMED DOES NOT ENDORSE, WARRANT OR GUARANTEE ANY PRODUCT OR SERVICE OFFERED THROUGH A WEBSITE OR AS PART OF THIS SERVICE AND WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES. IN ANY EVENT, IF ANY OF THE ABOVE PROVISIONS IN THIS SECTION ARE NOT ENFORCEABLE IN AN APPLICABLE JURISDICTION, THE MAXIMUM LIABILITY OF RESMED WILL BE LIMITED TO, IN THE SOLE DISCRETION OF RESMED, EITHER THE (1) CORRECTION OR DELETION OF ANY INACCURATE CONTENT OR LINK; OR (2) REFUND OF ANY FEES IMPOSED IN CONNECTION WITH YOUR USE OF THIS SERVICE THAT HAVE BEEN RECEIVED BY RESMED FROM YOU.

Indemnification

You agree to defend, indemnify and hold harmless ResMed and its affiliates, officers, directors, employees and contractors from any demands, claims, damages, liabilities, expenses or harms, including attorney's fees, arising in connection with your use of this Website, online conduct, breach of these Terms, or dealings or transactions with other persons resulting from use of this Service.

Miscellaneous

Third-party sites and other information

This Service may contain as a convenience to you, content, links and other information submitted by third parties over whom ResMed has no control or responsibility, as well as translations thereof which ResMed may arrange. ResMed has no obligation to monitor, control or restrict the use of this Service, or third-party websites accessible via links available as part of this Service. These other sites are not under ResMed's control, and you acknowledge that (whether or not such sites are affiliated in any way with ResMed) ResMed is not responsible for the accuracy, copyright compliance, legality, decency or any other aspect of the content of such sites. The inclusion of such a link does not imply endorsement of any site by ResMed or any association with its operators.

Separate terms and conditions

From time to time in connection with your use of and/or access to Content contained in certain areas of a Website or as part of this Service, or receipt of Communications from ResMed, it may be necessary for you to consent to policies or terms and conditions in addition to these Terms. You should read carefully any such additional terms and conditions before making any use of such Content or areas of a Website or as part of this Service. Any such terms will not vary or replace these Terms regarding any use of a Website or the Service, unless otherwise expressly stated.

Privacy Policy

ResMed is concerned about privacy and has developed a policy to address privacy concerns. You can find the current Privacy Policy relating to your use of this Website here. The Privacy Policy is hereby incorporated into these Terms by reference and constitutes a part of these Terms.

Dispute resolution; applicable law and forum

With respect to any and all disputes arising out of or in connection with a Website or this Service, Communications, or these Terms (including without limitation the Privacy Policy), ResMed and you agree to negotiate in good faith and undertake reasonable efforts to cooperate with one another in order to achieve a mutually satisfactory resolution. These Terms of Use are governed by the laws New South Wales. ResMed and you agree to submit to the non-exclusive jurisdiction of the courts of New South Wales.

Modification of Terms

These Terms and the Privacy Policy referenced in these Terms constitute the complete agreement between you and ResMed with respect to their subject matter and supersede any prior agreement or communication on this topic. These Terms are subject to change from time to time. ResMed will endeavor to post a notice of any changes to these Terms for a period of 30 days following any such modifications. Therefore, you are advised to review these Terms occasionally, or at least every 30 days. Your continued use of this Service subsequent to ResMed's notice of modification of these Terms shall constitute your acceptance of the modified Terms. If any term or provision of these Terms shall be found to be invalid, illegal or otherwise unenforceable, such finding shall not affect the other terms or provisions of these Terms, or the whole of these Terms, but such term or provision shall be deemed modified to the extent necessary to render such term or provision enforceable, and the rights and obligations of you and ResMed shall be construed and enforced accordingly, preserving to the fullest permissible extent the intent and agreements set forth in these Terms. Your obligations pursuant to these Terms shall survive termination of any use by you of this Service, any Content on a Website, or these Terms.

Contact information

If you have any questions regarding these Terms or this Website, please contact us by email at privacy@resmed.com

COMMUNICATIONS WITH YOU: ResMed may contact you with Communications using an automated call system (“IVR”), text, emails, or live calls. You may request to opt out of these Communications at any time by notifying ResMed either by way of an opt out message via text, an email, or verbally on a live call.

By replying ‘Yes’ via text, I agree to the Terms of Use (available here) and Privacy Policy (available here). I also agree to receive Communications by ResMed at any email or phone number I provide, including via automated technology, for any purpose, service or marketing. My consent is voluntary and is not a condition of receiving any good or service.